Wednesday, July 1, 2015

It’s the Thought that Counts---Even for Knuckleheads

From guest blogger Paige Nichols,

Have you ever wondered how far your laser pointer can point? This turns out to be a mystery best left unsolved. That’s the lesson Sergio Rodriguez learned after he was caught aiming a $7.00 toy laser at a helicopter that was more than 1,000 feet up in the air. Mr. Rodriguez was convicted under both 18 U.S.C. § 39A, which prohibits intentionally aiming a laser at an aircraft, and 18 U.S.C. § 32(a)(5), which prohibits intentionally or recklessly attempting to interfere with the safe operation of an aircraft. Last week, the Ninth Circuit reversed Rodriguez’s § 32(a)(5) conviction, finding insufficient evidence to support it. In so doing, the Court emphasized the difference in the intent required under § 39A, and that required under § 32(a)(5):

The evidence clearly shows that Rodriguez was rightfully convicted of aiming the laser pointer at a helicopter (§ 39A). However, there is insufficient evidence that he willfully attempted to interfere with the safe flight of the helicopter (§ 32(a)(5)). Rather, the evidence showed that he was attempting to see how far his laser would go at night---a stupid thing to do, yes, but there is no evidence that he was trying to interfere with the pilot. Section 39A is designed for knuckleheads like him. On the other hand, 18 U.S.C. § 32(a)(5) is designed for both the Osama bin Ladens of the world---people trying to bring down a plane, intending to cause harm---and those who are aware that their actions are dangerous and could harm others, but just don’t care. The failure to recognize this distinction is to fail to appreciate that Congress saw fit to create two different crimes, one more serious than the other, for two different types of offenders.

The case is a nice reminder that intent matters, and stupidity does not equal recklessness. For Mr. Rodriguez, the result means the difference between a 14-year sentence, which is what the district court gave Rodriguez, and a 5-year sentence, which is the max he can get for his § 39A conviction.

And about those laser pointers: They may be more powerful than you think. The label on the pointer seized from Mr. Rodriguez said “Max Output Power < 5 milliwatts.” But both defense and government testers found that the laser had up to 65 milliwatts of power. Laser beams don’t operate like normal beams. They expand as they travel. Mr. Rodriguez’s laser beam would have had had a diameter of about 11 feet when it hit the helicopter at 1,000+ feet. Who knew? Not the average person, says the Rodriguez Court. But you, now that you’ve read this? Consider yourself warned.